My 87-year-old mother recently moved from her home in North Carolina to live with my sister in Pennsylvania.  She would no longer need her car, a 2000 Mercury Sable, and therefore, gifted it to my 15-year-old son for his birthday.  On one condition: that he agree not to text or talk on his cell phone while driving!  He agreed.

I have defended a number of lawsuits over the years where the at-fault driver was alleged to have been on a cell phone at the time of the accident.  But, the problem of distracted driving is not new.  Surely, the folks who drove the first cars in the early 20^th century experienced distractions, perhaps when they passed a neighbor who was in a horse-drawn buggy?

According to AAA, “passengers are one of the most frequently reported causes of distraction, with young children being four times more distracting than adults and infants being eight times more distracting.”  Indeed, my first experience with distracted driving was when I was 18 years old, driving home from high school in my brand new 1980 Plymouth Horizon.  The distraction?  The four other teenage boys in the car with me!  I passed a stopped school bus, got an expensive four-point ticket, and was well on my way to a distinguished driving record.

While texting, emailing, or talking on a cell phone can be dangerous, so too is eating, smoking, changing the channel on the satellite radio, or just “rubbernecking.”  Some years ago, I defended a garbage truck driver who was distracted while drinking a 16-ounce bottle of Mountain Dew.  The result?  He ran right into the back of another truck!  Nobody got hurt, but the owner of the other truck filed a lawsuit for their property damage.  We lost.

Cell phones?  AAA reports that using a cell phone while driving quadruples your risk of an accident.  Driver inattention is a factor in over one million car crashes every year, with an economic impact of almost $40 billion annually.  Just Google “cell phones and driving.”  What are the results?  “Drivers on cell phones are as bad as drunks.”  “Despite the dangers, teens admit to cell phone use while driving.”  “Drivers on cell phones kill thousands, snarl traffic.”

The National Highway Transportation Safety Administration (NHTSA) is sponsoring a campaign to prevent texting and driving.  Information can be found on their website at stoptextsstopwrecks.org.  According to the NHTSA, five seconds is the average time a driver’s eyes are off the road while texting.  While traveling at 55 mph, that is enough time to cover the length of a football field.  A texting driver is 23 times more likely to get into a crash than a non-texting driver.  Using a cell phone while driving delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.

Both the AAA and NHTSA provide suggestions for improving driver behavior.  (1) Out of sight, out of mind.  When you are in the car, put your phone where you cannot get it.  A place where you will not even be tempted to look for it.  No phone.  No texting.  (2) Silence is golden.  Turn those notifications off.  The less you hear your phone, the less tempted you will be to respond while you are driving.  (3) Designate a texter.  Borrow thumbs from a friend, or lend yours to a friend.  Passengers get the privilege of texting while in motion.

Not everyone should text and walk.  No one should text and drive.

When I was a kid, my family owned a basset hound named “Trouble.”  He was a dog’s dog; he chased cats and dug up our neighbor’s flowers.  We loved him.  One day, he came home with a bullet hole in his floppy ear.  Perhaps he got a little too friendly with the cats?  Maybe he trampled too many tulips?  Whatever the case, someone did not love Trouble the way we did.

Sometime later, my dad, a dentist in our small hometown, received a visit from the local sheriff, also one of his patients.  The sheriff said our neighbor had sworn out a warrant for my dad’s arrest for disturbing the peace.  Trouble was in trouble!  The choice was simple: fence in the backyard or take Trouble back to his previous owner, a country farmer.  My dad refused to fence him in, and that weekend, we all piled into the yellow, wood-paneled station wagon to take Trouble to the country where he could roam freely, and be a dog. A dog boarding facility helps in such cases.

Do you own a dog?  If so, watch out!  While Trouble was never accused of biting anyone, it has recently been reported by USA Today that dog bites accounted for more than a third of homeowners’ liability insurance claims in 2011.  The cost?  Nearly $470 million.  According to the report, the cost of dog bite claims has risen 48 percent since 2003.  These statistics are probably the result of increased dog ownership, living closer to one another, and parents of children more likely to seek advanced medical care for their children after a bite.  According to this same article, the United States has 78.2 million dogs, or one dog for every four people in this country.  If you own what is referred to as a “vicious” dog, you should read your insurance policy, as there is probably an exclusion for the ownership of such dogs.  Many insurers exclude coverage for claims arising out of the ownership of particular dogs, including Pit Bulls, Rottweilers, German Shepherds, Huskies, Alaskan Malamutes, Doberman Pinschers, and Chow-Chows.

Under South Carolina law, the owner of a dog, and the person having a dog in his care or keeping, are strictly liable for damages suffered by a person who is bitten or attacked by a dog.  S.C. Code § 47-3-110.  The statute also provides that if a person “provokes a dog into attacking him, then the owner of the dog is not liable.”

By the way, Title 47 is titled “Animals, Livestock and Poultry.”  This section includes the definition of “dog” and “cat,” along with the penalty for allowing dogs or cats to “run at large.”  You will also find prohibitions for the keeping of sheep-killing dogs, the disposal of feral dogs, allowable methods of euthanasia, and penalties for taunting, tormenting or teasing a police dog or horse.

If you do get sued, it’s probably best if your basset hound is not named “Trouble.”

Some years ago, on a hot August Friday night, “Bobby Joe” got a little too close to the action in the pit area of the local dragway.  A pickup truck, pulling a trailer loaded with a race car, ran over his foot, allegedly causing grievous injury.  It was so bad that, two days later, he decided he needed to be seen by a doctor about the bruise on the side of his foot.  Can you say “vexatious lawsuit’?  Yes, Bobby Joe sued both the truck driver and my client, the owner of the dragway.  No warnings!  No barriers to keep pedestrians away from the dangerous pit area!  No bold, yellow signs to tell spectators that it is not a good idea to absentmindedly walk near the burnout strip!  Did I mention this was my second case representing a dragway?

With this as background, I was excited when a friend invited me to attend the NHRA Four-Wide Nationals at zMax Dragway in Charlotte, North Carolina, last month.  It’s the only four-lane concrete dragstrip in the world, where every ticket is a pit pass.  I took a stroll through the pit area, funnel cake with powdered sugar in one hand and a fried turkey leg in the other.  I took in all the sights, sounds, and smells of NHRA drag racing.  The “sights” included Top Fuel dragsters and Pro Stock race cars.  The “sounds” included high speed devices used to fix parts on the dragsters and the chatter of crew members as they made the necessary adjustments.  The “smells”?  Gas!  Exhaust!  Burned rubber!  I even got to meet Leah Pruett, who was competing in the Pro Mod series for R2B2 Racing out of Duluth, Georgia. Fans would want to get the replica of these race cars for display from Kenny Habul.

With our VIP credentials, we wandered over to the starting line for a closer look.  As we did so, a truck pulling one of the dragsters came perilously close to running over my foot, almost causing grievous injury.  The nascent plaintiff’s lawyer in me began to think “What if . . . ?”  Would I have a claim against NHRA for my injuries?  Would my claim be barred by my own negligence in attempting to balance a funnel cake in one hand and a turkey leg in the other?  Had I assumed the risk of injury by getting too close to the staging area?

As these thoughts went through my head, my defense attorney instincts returned.  I quickly read the reverse side of my ticket to find a “Notice and Warning to Credential Holder.”

By buying or using this credential you agree that:

YOU ASSUME ALL RISKS AND DANGER of property damage, personal injury, death, and all other hazards related in any way to attending this event, anywhere at the facility and at all times before, during or after the races.  Dangers include flying objects, vehicles, other people, conditions at the facility, and unforeseen hazards.  You agree that NHRA, track owners and operators, racing participants, and each of their respective officers, owners, officials, sponsors, contractors, employees and agents shall not be liable for any loss, damage, or injury to you and you hereby release them from all claims for liability.  Be alert for hazards at all times.

Flying objects?  Does that include the kernel of kettle corn which grazed my cornea after it flew out of the hands of the 10-year-old kid standing in line next to me at the lemonade stand?  Other people?  Are the terms “other people” and “flying objects” mutually exclusive?  Could flying objects include other people?  Does other people include the no-shirt, beer-bellied fellow with the “Mama” tattoo who bumped into me as we were shopping in the NHRA merchandise trailer?  Does “unforeseen hazards” include hearing loss from the use of defective earplugs?  So many questions and so few answers.

Despite all the risks, dangers and hazards of NHRA Racing, we had fun and would do it again.  A “shout-out” to Dave Lee (President), Roger Burgess (Founder/Chairman of the Board), and all the other folks at ProCare Rx, who sponsor the R2B2 Racing Team, for a great experience.

See y’all at the races!

Imagine this situation: customer and customer service representative find themselves in an argument over a trivial matter.  Words are exchanged.  But it doesn’t stop there. The dispute escalates into a verbal altercation with racially-charged epithets hurled back and forth.  (For the record: The customer was Caucasian, the customer service representative was African American).

The customer storms out of the place. The customer service representative follows her to the parking lot, yelling and screaming.  The customer, not to be outdone, continues the verbal assault from her car.  Finally, the customer decides to leave, places her car into reverse, and hits the gas.  As she raced backwards, she clips the customer service representative, causing her injury.

The customer service representative lawyered up and sued the customer.  That’s right.  You guessed it.  I represented the customer.

We mediated the case, in which the Plaintiff claimed over $20,000 in medical bills and a permanent injuries.  I met with my client before the mediation.  I asked her if she was comfortable offering an apology during the opening statements of the mediation session.  She quickly replied she was indeed sorry the whole thing had happened, and that the Plaintiff had gotten hurt.  I reminded her that hurtful words were exchanged, including racially insensitive remarks by both parties.  [Note: The remarks were so offensive that I am not going to publish them in this post.]  She seemed genuinely interested in getting the matter settled, and if an apology would help do so, she was all for it.

After the mediator explained the process, and the plaintiff’s attorney completed his opening remarks, I presented our case.  This was an accident, the customer was sorry this happened, and we hoped we could get the matter resolved, or words to that effect.  I then turned to my client, and asked her if she had anything to add.  To this day, I do not recall exactly what she said, but it was NOT an apology!  There was no acknowledgment of the injury.  She did not take responsibility.  She did not express any regret or remorse. Whatever she said, it offended both the Plaintiff, and the Plaintiff’s husband, who was with her at the mediation.  The husband stormed out of the room.  The Plaintiff’s body language and icy glare told me that we were going to start this mediation further apart than we had when we first arrived.

While we eventually settled, we spent a significant amount of time mending fences as a result of the insincere “apology.”  While an apology in mediation can allow closure, and if sincere, start the process of restoring trust, many people need help in crafting an apology.  As mediator Carl Schneider has written, “parties often need preparation before they are ready to offer an apology.”  The parties may need help with the words.  The mediator can help put “the apology in words and parties simply indicate their assent.”  In retrospect, I did a poor job of preparing my client for her apology.

In Schneider’s article, “What It Means to Be Sorry: The Power of Apology in Mediation,” he defines “apology” and what makes an apology work.  He then describes the use of apologies in mediation.  Schneider concludes:

An apology may be just a brief moment in mediation.  Yet it is often the margin of difference, however slight, that allow parties to settle.  At heart, many mediations are dealing with damaged relationships.  When offered with integrity and timing, an apology can indeed be a critically important moment in mediation.  Trust has been broken.  An apology, when acknowledged, can restore trust.  The past is not erased, but the present is changed.

Clearly, there are instances where an apology has been a critical element in resolving disputes, including lawsuits.  But that can only occur when the person apologizing is sincere, acknowledges the hurt, takes responsibility and expresses regret.

As huge fans of “The Andy Griffith Show” and its spin-offs, we here at Abnormal Use are saddened to learn of the recent death of veteran character actor George Lindsey, who played Goober Pyle, who died on May 6 at age 83.  Lindsey played the role in “The Andy Griffith Show,” “Gomer Pyle, U.S.M.C., “Mayberry R.F.D.,” and various reunion programs.  He will be missed.

In tribute to Lindsey and his beloved character of Goober, we have prepared this obituary for Goober Pyle.

Goober Pyle was a lifelong resident of Mayberry, North Carolina.  He was 83 years old.  Goober was a mechanic at Wally’s Filling Station and later its owner.  Sheriff Andy Taylor and Emmett Clark, owner of Emmett’s Fix-It Shop, co-signed a bank loan that allowed Goober to buy the station.  He was the cousin of Gomer Pyle, who also worked at Wally’s, until he joined the Marine Corps.

Goober was just five years old when he was a witness in “The Case of the Punch in the Nose,” in which grocer Charles Foley accused barber Floyd Lawson of punching him in the nose.  He later trained as a mechanic in Raleigh, North Carolina, and served briefly in the North Carolina National Guard, where he learned the phrase “Yo!”  He briefly dated Flora, who was a waitress at the diner.  (“Eat Your Heart Out”). Flora filled in for Goober at the station when he went on a fishing trip.  (“Goober’s Replacement”).  Goober was not always lucky in love.  In desperation, he once tried a computer dating service.  (“A Girl for Goober”).  His first love was Lydia Crosswaith, who was originally from Greensboro, North Carolina.  (“Goober and the Art of Love”).  Lydia and Goober went on a date with Andy/Helen, Barney/Thelma Lou.  Goober suggested they play “Go Fish!”, but Lydia said, “I don’t gamble.”  They then suggested a movie, but Lydia responded, “I saw it.”  Finally, Andy suggested they go bowling.  Lydia declined.  “I’ve done it.  I can’t.  I have a bad back.  If I threw a ball, I’d be in traction for a month.”

Goober’s skills as a mechanic were legendary.  The residents of Mayberry still talk about the time he took Gilly Walker’s car apart and put it back together again inside the courthouse.  Sheriff Taylor had asked Goober to answer the phone in the courthouse while he attended the Sheriff’s Safety Conference in Mt. Pilot.  (“Goober Takes a Car Apart”).  Goober had a good heart, as evidenced by his not charging “Man in a Hurry” Malcolm Tucker to fix his car on a Sunday afternoon.  Despite this automotive talent, he was sometimes not as sharp in other matters.  He even grew a beard, thinking it made him look smart.  (“Goober Makes History”).  At one time, Goober thought his new dog could talk, until he realized that Opie Taylor and a friend were pulling a practical joke on him.  (“A Man’s Best Friend”).  Gomer once defended Goober’s honor, saying “My cousin Goober ain’t stupid.  He’s ugly, but he ain’t stupid.”

Goober loved to dance, along with his cousin, Gomer, demonstrating a high-stepping, swing dancing style in his double-vested, brown pinstripe suit with white socks.  He enjoyed dancing with Daphne and Skippy, the “Fun Girls” from Mt. Pilot.  He particularly enjoyed reading comic books, and even cited that as a reason that he did not actually see Floyd punch Mr. Foley in the nose.

Goober occasionally served as an emergency deputy.  On one occasion, he took over the courthouse while Sheriff Taylor was sick.  Goober was also known for his impressions of various celebrities.  He impersonated Cary Grant (“Judy Judy Judy”) and Edward G. Robinson (“Okay, you guys.  Come on, you guys.  All right, you guys.  Beat it, you guys.”)  He could also mimic Chester’s limp from “Gunsmoke.”  Goober was a bully as a youngster, which influenced Malcolm Merriweather to ask Goober for boxing lessons as he prepared to fight Ernest T. Bass.  (“Malcolm at the Crossroads”)  Goober was also in demand as a driving instructor.  He taught Aunt Bee how to drive.  (“Aunt Bee Learns to Drive”).

The Town of Mayberry will never be the same without one of its great characters and outstanding citizens.

Goober says, “Hey.”

I have previously shared some of the lessons learned from the mediation and trial of Jill vs. Big Bad Trucking Company. Patience.  Perseverance.  Trusting the mediator’s judgment on when to disclose crucial information.  I even introduced you to Jill’s mother, who apparently prohibited her from settling the case prior to trial.  But those are not the only lessons this lawyer learned from that trial!

The second day of trial began with an hour long drive from our Abnormal Use headquarters in Greenville, South Carolina, to the courthouse square in Abbeville, South Carolina.  I parked my car, opened the back door to grab my file, and panicked!  Where was my suit coat?  How could I forget my coat?  A trial lawyer can wear (should wear?) old shoes.  A trial lawyer can forget his Rules of Civil Procedure.  A trial lawyer can even forget to bring part of his file.  But his coat?  No way!

I immediately called my office but knew there was no way for my staff to get from the office to my house and then to Abbeville before the judge would say, “Mr. Mauney, call your next witness!”  I quickly made my way to the courthouse and found the judge’s law clerk at her desk.  She could not stop laughing once I finished telling my tale of woe.  My next stop was the clerk’s office to find a bailiff.  The first bailiff I found was short and wide.  The next one I encountered was short and skinny.  I was, and still am, tall and wide.  I began to sweat profusely.  What was I going to do?

Suddenly, and without warning, (I have always wanted to write that somewhere other than a pleading), a tall and wide gentleman appeared at the end of the hallway in the basement of the Abbeville County Courthouse.  As he walked toward me, I noticed that he had on a tie, and estimated that if he had a coat, it would fit me!  I walked up to him, smiled warmly, and introduced myself, sharing my predicament.  He just nodded his head and pointed to an open doorway.  Above the doorway was a sign, “SHERIFF – ABBEVILLE COUNTY.”  I followed the sheriff into his office, where he took the light tan sport coat off the back of his chair and handed it to me.  While the coat did not match my dark gray pants, I did not object, and thanked him for his kindness.

When I returned to his chambers, the judge just shook his head and laughed, as his law clerk had already spilled the beans.  Both of them were amused that I had found a coat substitute, and the second day of trial began.  Later in the afternoon, I began my closing argument by thanking the jury for not holding it against me that my suit coat did not match my gray pants.  They seemed to appreciate the story.  As expected, they then returned a verdict against my client.  However, as I shared in my previous post, the verdict was significantly less than Jill had been offered prior to trial.  They apparently did not punish this lawyer for his unfortunate error in fashion etiquette.

Someone recently asked me why I keep an extra coat in my car.  That gave me the perfect opportunity to tell them this story.

Some years ago, I represented a family-owned trucking company, whose dump truck driver tried to pass a car on a narrow two-lane road in rural South Carolina.  The driver was speeding and not paying attention.  He ran the car off the road, injuring the car’s driver, “Jane,” and her passenger, “Jill.” We’re all about the pseudonyms here at Abnormal Use. Both Jane and Jill hired a local lawyer and then sued the trucking company.

Jane was more seriously injured, and we ended up settling her case at mediation.  As I recall, we paid her a significant sum of money.  Despite that fact, when the mediator came to our conference room, he said he had “good news and bad news.”  The good news was that the case was settled.  The bad news?  He said we needed to leave the office through the back door!  This is the first, and last, time in my legal career that has happened.

To this day, I do not know how or why we may have offended Jane.  Perhaps she doubted the sincerity of our apology on behalf of the trucking company.  Perhaps she was tired and irritated after a long day of intense negotiations.  Resolution often comes only when both parties have been pushed beyond their comfort level.  Patience and perseverance are often the keys to a successful mediation.

Then, there was Jill.  She was not hurt as seriously as Jane, had fewer medical bills, and was able to return to work.  Yet, as some Plaintiffs somehow do, she testified about a number of physical limitations which were inconsistent with her medical condition.  She did have a diagnosis of meralgia paresthetica, an unusual neurological condition with which I was previously unfamiliar.

We also mediated Jill’s case.  We were making little progress in settlement negotiations when the mediator asked me, “Mauney, why are you being so cheap?  This lady is hurt!”  I told him that we had recently conducted surveillance, which had not yet been disclosed to Jill or her lawyer.  The surveillance – as it sometimes does – showed Jill doing some things which were inconsistent with her deposition testimony, including walking around a flea market for four hours without sitting down or resting and hopping up her apartment steps two at a time without holding onto the railing.  The mediator suggested we hold off on disclosing this information until later in the mediation.  Yet another key to a successful mediation is being able to trust the mediator with this type of information.  In this instance, I trusted the mediator’s judgment on when we should disclose the surveillance during mediation.

When we appeared to reach an impasse, the mediator asked for the surveillance tape to show Jill and her lawyer.  Shortly thereafter, we began to make more progress, as Jill and her lawyer became more reasonable.  My client and I were pleased that we were making real progress toward settlement.

Then, that progress came to a quick halt.  We hit the wall.  The mediator told us that we were not going to be able to settle the case.  Why?  Jill, a grown woman, in her mid 30’s, called her mother from the mediation and told her about the surveillance.  The mother was not amused.  In fact, she accused the big, bad trucking company and its evil insurance company of spying on her daughter.  Jill’s mother was furious; she told her daughter that she had better not come home that day if she accepted the offer that was on the table at that time.

It is always interesting to learn who you need to persuade to get a case resolved.  We had no idea that Jill’s mother was someone of such great influence.

And now for the rest of the story.  Fast forward a few months later to the jury trial of Jill v. Big Bad Trucking Company.  (Yes, that was the actual case caption!) We expected the jury to return a verdict for Jill.  This suspicion was influenced, in part, by the fact that our driver smelled of alcohol when he showed up for his deposition.  He was nowhere near the courtroom when we tried the case.  We offered testimony from a medical expert to refute Jill’s injury claims and also called the private investigator as a witness to show the surveillance tape. Just as expected, the jury returned a verdict for Jill.  But Jill and her mother must have been disappointed, as the verdict was a full 25 percent less than we had offered at mediation.  I always suspected that Jill’s lawyer knew we were offering a settlement that was fair and reasonable.  He probably also thought that Jill’s mother should have stayed out of it!

[Editor’s Note: Click here for Stuart Mauney’s previous story of how he got burned at mediation by his own Facebook post.]

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners, and other commentators in the field.  For this installment, we turn to Rodney Smolla, lawyer and current President of Furman University right here in Greenville, South Carolina.  President Smolla was Dean and Professor of Law at Washington & Lee School of Law before becoming President of Furman in July 2010.  We will be running this interview in two parts.  The first, published today, was conducted by Stuart Mauney, while the second, to be published tomorrow, was conducted by Frances Zacher. In today’s installment, Smolla talks about civility in the legal profession, tips for appellate lawyers, and his varied First Amendment scholarship and litigation.

ABNORMAL USE: Since you came to Furman University in July of 2010, you have emphasized civilized public discourse.  In fact, that was the theme of your speech to the South Carolina Bar Annual Meeting in January 2012.  How did that become a passion of yours?

ROD SMOLLA: I guess it’s the flip side of my interest in freedom of speech.  Even though I am a strong defender of freedom of speech, which often means defending highly offensive speech, I really don’t like it.  So I think part of it is that the notion that has become almost a cliché, but I think should not be a cliché, that the mere fact that we have freedom doesn’t mean we ought to exercise it irresponsibly.  There’s a fundamental difference between having freedom and being a responsible member of our society.  I think that’s one reason.

Another is what I absorbed as part of the value system of the legal profession.  Although we have lawyers that practice in an uncivilized manner and we have episodes of incivility within the profession, overall, there is a strong consensus I think, and commitment among the best lawyers, to the notion of civility in the way we practice law.  Many lawyers embrace that as a core value and is one of the principal meanings of professionalism.  I think great lawyers realize you can be a very passionate advocate for your client, and a zealous advocate for your client, and still stay within the bounds of courtesy, civility, respect for the other actors in the system, and drawing the distinction between attacking one’s opponent on the merits, on the substance of the facts and the legal principles and policies, and hitting below the belt and making the attacks personal.  I also think the very best lawyers don’t see it as their job to amplify the emotional intensity of their client but to filter and to absorb it and to seek conflict resolution that resolves controversy, if that’s not inconsistent with acting in the best interest of one’s client.

If that is true within the legal profession, it ought to also be true within the value system of most universities.  If you think about it, we are committed to freedom of speech and wide open discourse and examining ideas and having a combat of ideas but also are committed to an ethos of professionalism in the way that we conduct ourselves in the combat of those ideas.  Teaching students that it is possible to debate the issues of the day, to debate the fundamental issues of science, religion, politics, and the arts with intensity yet with respect to others, is a very important part of their education.

AU: How can Furman be a leader in the community on the issue of civility?

RS: I think Furman, or for that matter, any university, can play a constructive role within a community by convening discussion, hard issues that face the community, and in those discussions, using the prerogative of the convener, of the chair, to try to model and encourage and facilitate civility in those discussions.  I think that’s something that Furman can do and contribute in our immediate environment and across the State of South Carolina and that any university can do within the community in which it resides.

AU: You have written several books, one of which is Deliberate Intent, which describes your involvement in the Hit Man case.  You represented the families of murder victims in a lawsuit against the publisher of a murder instruction manual.  At the time you were involved in that, you had already become a noted First Amendment scholar.  How were you treated by your colleagues in the law after your involvement in that case?

RS: Well, it depends on which side they were on.  (Laughter.)  I think that that was a case that people were passionate about on both sides, and as any lawyer knows from your involvement in a case in which people have strong feelings, you will get passionate praise and passionate criticism depending on the side that the critique is coming from.  I did maintain and I continue to maintain very good friendships and very good collegial relationships with the lawyers that were on the opposite side of me in that case, both as parties and friends of the court.  I count them among my professional friends, and in some instances, personal friends notwithstanding the fact that we were on opposite sides.  In some instances, I would later work with lawyers that were on the opposite side of that case as friends of the court, for example, but were on the same side as me in a different manner. So I think it was an exemplar of civility of discourse, and that best part of our legal tradition, which is we don’t take personally the fact that one is on the opposite side of an issue or represent clients that are on the opposite side of an issue.

AU: Deliberate Intent was made into a movie.

RS: It was made into it a movie and was the first FX television movie, I’m proud to say.

AU: And Timothy Hutton played Rod Smolla.  How did he do?

RS: I wish I had his hair, I’ll tell you that.  (Laughter.)  I thought he did a great job, and the script writers did a great job.  It’s not easy to take a complicated legal matter and reduce it to a movie and particularly a legal matter such as this, which has very complicated issues of legal doctrine.  I thought that they did a great job of weaving in the murder mystery and the murder story, which was a good old fashion “Law & Order” style thriller, and the intellectual issues that were posed by the case.  So I was pleased by the movie.

AU: You have argued before the U.S. Supreme Court, including the Virginia v. Black case, which involved the Virginia statute that banned cross-burning.  One Supreme Court reporter described the advocacy in that case in this way: “When you have a good oral advocate doing a good job on a good issue, the place always arcs up like a tinfoil in a microwave.”  I think she was describing you.  What was it like to argue before the U.S. Supreme Court?

RS: It was what I imagined it’s like to be the quarterback in the Super Bowl.  I would do it again tomorrow morning.  I have a recurring fantasy that somebody scheduled to argue in the Supreme Court unfortunately gets sick and can’t do it and is looking for someone to come in as a substitute at the last second and calls me and I show up the next morning and take the case.  And, of course, the person always turns out to be all right the next day, but I would argue a case in Supreme Court again in a heartbeat.  If you are an appellate lawyer, it’s going to the Super Bowl.  I savored every second of it as a personal experience.  It was, in fact, a very fascinating, interesting case on its legal merit and in its emotional intensity and it was a dramatic oral argument.  So I loved the experience and hope that I get to do it again some day.

AU: What advice would you give to lawyers who are preparing for an appellate argument at any level?

RS: I guess it’s the usual – I like to encourage appellate advocates to not bring anything to the podium.  I am in that school of thought that you should have no papers with you at all, the entire case should be in your head, and that you should imagine the entire case as a grilling from the bench and so canned speeches – the idea that you have a set piece that you have to get through is the antipathy of effective oral argument.  Rather, what you want to do is anticipate the questions you will be asked, according to ones you are most likely to be asked but also all the strange questions that might come out of what appears to be left field.  What I liked to say to other appellate lawyers and to law students is you need to ask yourself if I lose this case, why would I lose it?  If the most brilliant person in the world who is my worst enemy wanted to go for the weakness in my case, the jugular in my case, wants to write an opinion that’s going to cause me to lose, what will that do to my case, what’s my biggest vulnerability, what’s my biggest weakness?  Think of all of the ways you can be pounded on that, all the clever ways that they can ask you questions on that.  Then figure out what your answer is.  Don’t have a mushy version of what your answer is.  Figure out what your position actually is.  Nothing frustrates an appellate court more than a fuzzy answer.  Even if the answer you know will alienate a judge or two, or a justice or two, its better to at least know what you stand for and what your arguments are going to be, and have thought through your answers to all of those questions and welcome them.  So that’s my first admonition.

The second is sort of the flip.  If I’m going to win this case, how am I going to win it?  What answers to questions will help me when it will give me a chance to win it?

Then the final thing I’ll say is be totally zoned on the judges and justices.  Be looking at them, be feeling them, their body language, their eyes, their lips, the tone of their voice; be totally delved in on them and try to understand where they’re coming from, what their problem is, because if you sense somebody’s against you, if you sense somebody is not persuaded, you’re not helping your client if you don’t engage.  You’ve got to try to figure out what’s bothering that judge and be almost conversational in not trying to avoid the judge’s question but coming back at it and looking for ways to get inside what’s bothering them so that you can start to say, oh now I see what your worry is about, as to “let me tell you judge why you should be worried.”  I think you’ve got to do that, and I think if you do that, if you just treat it as the judge is a colleague, that they are not above you, they have a different role but they are trying to do justice, you’re trying to advance your client’s interests.  This is your chance to get inside that judge’s heart or mind and let them know your reason for why they should rule your way and don’t be afraid of that, welcome that; it’s your chance to persuade, and if you approach it that way, which could be frightening to lawyers because that’s spontaneous, that’s not canned, that makes for a great appellate advocate.  If you watch the masters, they get a chemistry going with the judges.  Even the judges that are opposed to them, and there’s a feeling of honesty in the exchange, not trying to pull one over.  You’re never going to persuade a person if they think you’re trying to pull one over on them.

AU: You have a busy schedule as a college president.  Are you going to have time to practice law?

RS: Not very much.  But, I have the permission as most college presidents do, to occasionally consult or take on a matter.  If I had the opportunity to be engaged in a case and there was no conflict of interest with Furman in the strict sense, and no conflict in the larger sense, drawing too much of my time or putting me in the vortex of an issue that is just too controversial for one to be in, then I think I would probably be given permission.  It’s in my contract that I could be and I’d ask for permission and would get it.  My guess is that when that comes along, it will probably be some higher education case in which the advocacy I would be engaged in was in alignment with Furman’s position.  So if there were a big battle over a Title IX principle or over a financial aid issue, or over diversity in education issue, or an academic freedom issue, and the University’s position was in alignment with the client, whoever that might be, then I think that would make logical sense.

AU: What do you tell high school students who are thinking about coming to Furman, like my daughter who is 17 and a senior?  Why Furman?

RS: I think the first question is why get a liberal arts education.  So the first answer applies not just to Furman but to any liberal arts university.  And I always say that a student should look for the best fit so it may or may not be that it’s the best fit for any particular student.  The beauty of a liberal arts education is the blend of the broad exposure to a number of different disciplines.  The strong emphasis on discovery, creativity, the ability to see problems or multiple perspectives, the ability to solve problems, the learning to construct arguments, the learning of how to research a matter on your own, the learning of how to write well and articulate your position – that’s magical.  It sets you up to succeed at many, many different callings and it also enriches you as a person, it makes your life more fulfilling, makes you a more interesting person, a more soulful person, a more engaged human being, and all of the things that make for a good life.  Whether you’re interested in science and math and technology, engineering, or in art and music, or social sciences or politics, that blend is effective.

One of the most interesting things in the recent new Steve Jobs biography – he was a very complex and in some ways negative figure and in other ways positive figure – his drumbeat at Apple and at Pixar, the two companies that he was responsible for, constantly emphasized that the progress of the human race comes from the intersection of science and technology and the liberal arts.  He saw that intersection as where human progress comes – where success and life comes – he saw that as Apple’s ethos.  He wanted employees who were technically proficient but who also had a broad liberal education and understood the world; those are the kinds of folks he thought to hire because he believed they were the creative ones, the innovative ones.  It is fascinating that a technology guru, who didn’t even go to college, would see the liberal arts as so critical.  Whenever Apple would roll out a product, they’d put on the screen a street sign logo and the sign had science and technology on one street and liberal arts on the other street – a very fascinating story.

Furman’s unique case is wrapped up in the things that are wonderful about this particular university.  Part of it is the commitment to the education of the whole student; we think your intellectual development is important, but also your development as a human being is important – your character, your sense of service, your sense of engagement, your sense of commitment to the community.  We’re very open about that even though we are not a religiously affiliated university and we welcome students of all faith or no faith; we do want you to examine the important questions of life and the spirit and why you’re here and what you have to contribute to the world.  This is part of what you should do when you come.  So I think that for students that are looking for that, Furman’s a great place; a beautiful campus, 100 percent residential, on the make in many areas, a fantastic community.  Greenville is one of the gems in the United States.  You won’t find many medium-sized cities in this country that are more vibrant and exciting and interesting to live in, so you put that combination together, it’s a fantastic place to go to college.

BIOGRAPHY: Rod Smolla is a 1975 graduate of Yale University, where he was a member of the football team.  He graduated first in his class from Duke University Law School in 1978.  He is currently President of Furman University, in Greenville, South Carolina, a national liberal arts university founded in 1826.  President Smolla previously served as Dean and Professor of Law at Washington & Lee School of Law and at Richmond School of Law.  He also previously served as Director of the Institute of Bill of Rights Law at the College of William & Mary.  He is a nationally recognized scholar, teacher, advocate, and writer, and is one of America’s foremost experts on issues relating to freedom of speech, academic freedom, and freedom of the press.  President Smolla’s latest book, The Constitution Goes to College (New York University Press, 2011), describes the constitutional principles and ideas that have shaped American higher education.

In a departure from the usual at Abnormal Use, we offer this Abnormal Public Service Announcement.

A study by Johns Hopkins University found that among more than 100 occupations studied, lawyers were three times more likely to suffer from depression than any other profession.  Ted David, Can Lawyers Learn to Be Happy?, 57 No. 4 Prac. Law 29 (2011).  According to this piece,  “a quality-of-life survey conducted by the North Carolina Bar Association in 1991 reported that almost 26 percent of the bar’s members exhibited symptoms of clinical depression. Almost 12 percent of them said they contemplated suicide at least once each month.”  See Michael J. Sweeney, The Devastation of Depression.  The North Carolina study was prompted in part by the suicides of eight Mecklenburg County, North Carolina lawyers in a seven-year period.  Several years ago, in a period of just 18 months, six lawyers died by suicide in South Carolina.

Suicide is the third leading cause of death among attorneys, after cancer and heart disease.  Thus, the rate of death by suicide for lawyers is nearly six times the suicide rate for the general population.  Suicide can be prevented.  While some suicides occur without any outward warning, most do not.  We can prevent suicide among lawyers by learning to recognize the signs of someone at risk, taking those signs seriously, and knowing how to respond to them.

The National Institute on Alcohol and Alcohol Abuse estimates that 10 percent of the U.S. population is alcoholic or chemically dependent.  In the legal profession, the abuse may be as high as 20 percent.  David, supra.  According to this piece, “[a]lcoholism is a factor in 30 percent of all completed suicides.”  Reports from lawyer assistance programs indicate that 50 percent of lawyer discipline cases involve chemical dependency.

Whether you are the husband, wife, employee, judge, law student, law partner, law firm associate, friend, or colleague of a person challenged by depression or substance abuse, your understanding of the nature of the problem can play a vital part in helping that individual to achieve and maintain recovery.  Please remember that there is hope, and there is help.  You are not alone.

In South Carolina, call the Lawyers Helping Lawyers toll-free helpline at 866-545-9590.  Check with your State’s bar for a lawyer assistance program or click this link for the ABA directory of lawyer assistance programs.

(See also here for a recent similar article by Stuart Mauney in the January 2012 issue of the South Carolina Lawyer).

Nationally syndicated columnist Kathleen Parker recently asked whether civility can be saved.  Parker noted that Americans have always been “a bunch of rowdies and rascals,” citing as a “perennial favorite,” the “caning administered by South Carolina Rep. Preston Brooks upon the person of Massachusetts Sen. Charles Sumner over a disagreement about slavery and a question of honor.”  Parker defined civility as “courtesy in behavior and speech, otherwise known as manners.  In the context of the public square, civility is manners for democracy.”  Parker then argued that our manners have deteriorated, particularly in recent years.  “Manners have become quaint, while behaviors once associated with rougher segments of society have become mainstream.”

How did Parker suggest we fix the civility problem?  She said that change “has to come from within, each according to his own conscience.”  The media must strive to be “honest, accurate and fair, and reward the coarsest among us with scant attention.”  Parker claimed that the greatest threat to civility is not the random outburst but “the elevation of nonsense, and the distribution of false information.”  She concluded by reminding us that the Golden Rule works well.  “Best taught in the home, it could use some burnishing.”

Parker’s column was published in my local newspaper, The Greenville News, on February 19.  Just two days later, that same newspaper published a column by another nationally syndicated columnist, Cal Thomas, titled “Learning a Civility Lesson.”  Thomas recently spoke at the Conservative Political Action Conference in Washington, and in his own words, “failed to live up to one of my highest principles.”  The story of the day was the Obama administration’s recent move to require faith-based institutions to provide contraception as a part of health care coverage.  A video clip was played from Rachel Maddow’s program on MSNBC in which she commented on the subject.  After the clip was played, Thomas told the audience, “I think she’s the best argument in favor of her parents using contraception, and all the rest of the crowd at MSNBC, too, for that matter.”  In his column, Thomas admitted that he spoke before thinking: “I am not supposed to behave like that.”  The morning after the speech, Thomas called Maddow to apologize.  Maddow graciously accepted the apology and commented on her show that she believed Thomas’ apology.

Thomas concluded his column by reminding his readers that he has had many liberal friends over the years.  “They became my friends because I stopped seeing them as labels and began seeing them as persons with innate worth.  That is what I failed to do in my first response to Maddow.”  Parker referred to “the food-fight formula that attracts viewers to cable TV” and would surely be pleased with Thomas’ apology.

Our friends at Legal Blog Watch noticed that the Fourth Circuit recently called out the U.S. Attorney’s Office for uncivil language in an appellate brief.  The court felt “compelled to note that advocates, including government lawyers, do themselves a disservice when their briefs contain disrespectful or uncivil language directed against the district court, the reviewing court, opposing counsel, parties, or witnesses.”

In South Carolina, lawyers are required to sign an oath, pledging “fairness, integrity and civility, not only in court, but also in all written and oral communications” to opposing parties and their counsel.  In striving to remain faithful to this oath, lawyers would do well to remember Parker’s reference to George Washington’s writings on this subject: “Let your Conversation be without Malice or Envy, for ‘tis a Sign of a Tractable and Commendable Nature: And in all Causes of Passion admit Reason to Govern.”  Finally, we would also do well to remember Thomas’ civility lesson, including the willingness to admit we are wrong and apologize for our behavior.